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Mr. Hammond: The hon. Gentleman still has not explained whether the three-year limit should apply to the initiation of a complaint at the first tier of the NHS complaints procedure or refer specifically to the point at which a complaint was made to the commissioner. If it is the latter, does he have any information about the average length of time that it takes to exhaust the first and second tiers of the NHS procedure?
Mr. Dismore: The point is answered in my new clause, as it is in those tabled by the right hon. Member for Bromley and Chislehurst and by the Government--although I have not cross-referred Government new clause 7. Like my new clause, the right hon. Gentleman's refers to the time limit in which a complaint must be made to the commissioner under section 3(1) of the Health Service Commissioners Act 1993: three years. That would not therefore include any period previously dealt with while exhausting earlier stages of the complaints procedure.
I get the impression from the commissioner's most recent report that the procedure can sometimes take a year or two. The hon. Member for Runnymede and Weybridge may find it instructive to read the commissioner's evidence to the Health Committee when it was considering the issue of complaints. A year or two is far too long. We must find ways of speeding up the complaints process greatly. Otherwise, to return to my bull point, if I may put it that way, people who have no confidence in the complaints procedure and think that it will take too long and not provide an appropriate remedy, will inevitably find themselves running off to the courts in search of one.
10.15 am
I turn to the transitional arrangements in Government new clause 6, about which I have great concerns. It could create massive injustice between different complainants. Two people could have complaints arising from a doctor's conduct one day--let us say today. The doctor has had a bad day and somehow upset two of his patients. One patient is very cross and makes a complaint on getting home, which is proceeded with. On Monday, the GP suddenly decides that he has had enough and will retire. Under the transitional arrangements, the complaint made by the patient who acts promptly would be dismissed.
The second patient allows the complaint to brew a little, is clued up from watching our debate on television and realises, "Aha; if I wait until the Bill becomes law, I can bring a complaint that will be dealt with." So, two people with the same complaint against the same doctor on the same day would be treated very differently under the proposed provisions. That returns to the point that the transitional arrangements deal not with the date of the matter complained of, but with the date of the complaint. It would be far better if new clause 6 addressed the former. That would produce the equity that is lacking in the Government's present proposals.
I shall give an illustration of the problem arising in practice--in relation not to the NHS but to an amendment to the criminal injuries compensation scheme introduced by the right hon. Member for Penrith and The Border (Mr. Maclean) under the previous Government. I am afraid that he is not in his place; he always seems to miss me raising this issue, from which many interesting lessons for the way in which legislation is drafted can be drawn. I have previously dealt at length with the difference between "may" and "shall" in the case to which I shall refer.
In 1994, the then Government introduced massive cuts in the criminal injuries compensation scheme, but to sweeten the pill, people whose infant child had been killed were to be for the first time entitled to bring a claim for compensation and to a lump-sum payment. In my role as a lawyer, I challenged the Government in the courts and the cuts were thrown out. The Government then had to return to the old scheme until the matter was put right through the introduction of a much better scheme in 1995.
Some people had made their claims under the amended provisions, which enabled them to claim compensation. Some claims were allowed and money collected. Some claims were in progress, but effectively dismissed by the result of the court action--in a similar context to the proposed transitional arrangements. People were not allowed to make another claim because they would be re-opening one that had been dismissed.
There are 200 families in such circumstances who, to this day, bear a great grudge and grievance against the previous Conservative Government. They feel that they have been unfairly treated owing to the way in which the transitional arrangements operated. The proposed transitional provisions in new clause 6 are very similar because they relate to the date of the claim, not to the date of the incident. Perhaps the Government should think again about new clause 6. Providing for the date on which the incident complained of took place would produce far greater certainty for both complainants and doctors, and obviate the risk of injustice.
My new clause would provide the answers to the issue of the time limit. It would provide not just a fixed time limit but the flexibility that we need in its application. I hope that the Government will also look closely at the transitional provisions, perhaps withdrawing their proposals and returning with ones based on the date of the incident complained of. That would provide greater certainty and fairness between one complainant and another.
Mr. Miller: I listened with great interest to my hon. and erudite Friend the Member for Hendon (Mr. Dismore). As usual, a lawyer's argument is persuasive. The snag is that I have some suspicion about the role of lawyers in this area of litigation.
I am sure that many of us have dealt with constituency cases in which we feel that lawyers representing the regional health authority or medical trust involved have acted unreasonably by repeatedly delaying proceedings. In some regions there is clearly a practice of stonewalling complaints, so that the patient dies, gives up or is bankrupted and cannot pursue the matter further. I find such practices unacceptable, as are those of lawyers representing complainants who egg the complainant on because they may get a few bob out of the case. There is a worrying factor in that relationship.
Of the people who come to Members of Parliament with complaints about the health service, some are in it for what they can get--the number of noughts on the cheque--but most want to know what happened and what went wrong, and they want someone to apologise to them for the injustice that occurred. Because the medical procedures available are so highly technical, everyone who goes into hospital could find something that has gone wrong.
Some hon. Members may remember the time when I was hobbling round this place on crutches during the previous Parliament, having had treatment in the now demolished Westminster hospital--not demolished because of me, I would add. The hospital ran out of Heparin, which was necessary for the treatment that I was receiving. Could I have made a complaint? Could I have made a complaint that there were no teaspoons on the ward, because of cuts under the previous Administration? I am sure I could have complained about something.
Some lawyers would have pressed a client to make a legal complaint about such matters, but the majority of people do not want that. They simply want an explanation of what happened and why things went wrong, and they perceive justice as getting that explanation. I am sure that the right hon. Member for Wealden (Sir G. Johnson Smith) accepts that.
Mr. Dismore: I am grateful to my hon. Friend. I listened with interest to what he said, and I agree with his last point. Can he advise me what the correct course of action is in such circumstances? No lawyer who knew what they were doing would advise anyone to sue in such a case. The only course of action available is through the clinical negligence procedure.
Mr. Miller: I hear what my hon. Friend says, but it is difficult to specify the boundary without getting drawn into cases that are current in my constituency, which may come before the commissioner in due course, and one of which may well come before the court. Going to court is justified in cases where there is clear evidence of negligence and a long-term built-in financial disadvantage, but such sad cases are few. Because of the highly technical procedures in hospitals, there are bound to be problems, and people want explanations about what went wrong.
How can we deal with the matter? We can set no time limit, or a fixed time limit, or a fixed time limit with exceptions built in, or some such hybrid process. The right hon. Member for Bromley and Chislehurst (Mr. Forth), who opened the debate, did the House a favour by stimulating the discussion. As I said in my intervention, we should ensure at least that within the time frame set, a prima facie case is established by the commissioner,
although he may undertake an investigation and make a ruling substantially after the three-year period--it is possible that a delay may be required for medical reasons.The other possibility is that any case that appeared on the commissioner's desk up to the three-year deadline could be considered. I am worried about that simplistic approach. Parallels could be drawn with other forms of complaint that are open to the public, such as industrial tribunal procedures. Most tribunal chairmen are wary of complaints that appear within a day of the three-month limit for making them. There might be exceptionally good reasons, but such a late complaint seems like an attempt to get something out of the dismissal or whatever. By and large, chairmen are reluctant to accept that that is a proper way of proceeding. The complaint should be lodged as soon as someone knows that he has grounds for a complaint.
I hope that when my hon. Friend the Minister responds to the debate and explains her new clauses, she will give us her views on how the commissioner should handle cases within the period set. Should the commissioner accept any case brought to his attention during the three-year period proposed by the right hon. Member for Bromley and Chislehurst? Should the commissioner have the power to make exceptions beyond the time limit? Are there medical circumstances about which my hon. Friend, as the Minister, knows more than I, that would justify exceptions being made? Should the commissioner deal only with cases in which he has established prima facie evidence that a complaint is justified?
That must be clarified before we determine which route we take. The approach outlined by my hon. Friend the Member for Hendon would allow the flexibility that I want, but I am slightly worried that it might tempt the decisions out of the ombudsman's arena and into the courts. I should be happy to hear my hon. Friend's comments, if he considers it appropriate to intervene.
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